A recent report by a Senate inquiry, "Workplace Bullying: We Just Want it to Stop" has drawn attention to the personal, financial and health-related costs of workplace bullying.
For employees the experience of bullying can have a devastating impact on feelings of self worth and psychological and physical wellbeing. For employers costs can include staff turn over, productivity loss, damage to workplace culture and, in some cases, significant legal costs and adverse publicity. In a recent decision the Victorian Supreme Court awarded an employee almost $600,000 in damages due to an employer's failure to act in relation to the sustained workplace bullying of one of its employees.1
Bullying applications to be heard within 14 days and simple new definitions of "bullying" and "worker"
Government's proposed new anti-bullying measures in the form of recent amendments to the Fair Work Act 2009 (Cth) (which commence from 1 January 2014) create new avenues of recourse for a worker who reasonably believes him or herself to be the subject of workplace bullying. In particular, a worker will be able to seek an order from the Fair Work Commission (FWC) that the bullying stop and the application must be heard within 14 days of being made.
Importantly, there will be a new national definition of "workplace bullying" and the definition of "worker" is wider than an employee including for example contractors and their employees.
Reasonable management action (e.g. performance management) is an exception to bullying.
Stop orders and civil penalties for employers
To address a bullying complaint, the FWC may make any orders it considers appropriate, other than an award of money, to stop the bullying. If an employer does not comply with an anti-bullying order the employer can be exposed to a penalty (up to $51,000 per offence for companies and $10,200 for individuals).
When considering the terms of any order, the FWC must take into account factors including:
- any final or interim outcomes arising out of an investigation into the matter; and
- any procedure available to the worker to resolve grievances or disputes.
These new changes make it vital that employers take appropriate steps to respond to complaints of bullying and investigate (where appropriate) efficiently. Depending on the seriousness of the complaint, an external investigator and legal advice may be desirable meaning that employers will need to act swiftly. The changes also make it crucial that employers have robust policies in place which address bullying in the workplace and that employees receive appropriate training on these policies.
Given the rise in bullying via social media and other electronic communications (such as 'flaming' through email), employers also need to ensure that appropriate social media and electronic communications policies are implemented and enforced. Relevant policies should encourage the notification of complaints of workplace bullying through the appropriate channels.
Lessons for employers
The new laws commencing on 1 January 2014 are significant and have far reaching implications for employers.
Before 1 January 2014, employers should:
- familiarise themselves with the new workplace bullying laws;
- review, and in particular update, existing bullying policies, bearing in mind they may be subject to review by the FWC;
- ensure their employees have received appropriate bullying training;
- consider their complaints and investigation processes; and
- treat bullying complaints seriously as an employee can bypass internal processes and lodge a complaint with FWC.
How HWL Ebsworth can help
HWL Ebsworth can undertake a review of your bullying policy to ensure it complies with the new workplace bullying laws and can provide training to both management and employees on the new laws and the changes needed in the workplace.
Footnote
1Swan v Monash Law Book Co-operative [2013] VSC 326
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